Lelilio v. State, A-13514

CourtCourt of Appeals of Alaska
PartiesPAGOPAGO B. LELILIO, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberA-13514
Decision Date23 November 2022

PAGOPAGO B. LELILIO, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-13514

Court of Appeals of Alaska

November 23, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-17-05720 CR Erin B. Marston, Judge.

Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Wollenberg, Harbison, and Terrell, Judges.

SUMMARY DISPOSITION

Pagopago B. Lelilio was convicted, following a jury trial, of attempted first-degree murder, third-degree assault, and third-degree weapons misconduct (for being a felon in possession of a concealable firearm) after he fired a gun during a physical struggle with Anchorage police officers.[1] The superior court sentenced Lelilio to a

1

composite term of 30 years' incarceration - 25 years for the attempted murder conviction, 3 years for the assault conviction (with 2 years running concurrently to the sentence imposed for the attempted murder conviction), and 4 consecutive years for the weapons misconduct conviction. On appeal, Lelilio challenges his conviction for attempted murder and his sentence.

First, Lelilio argues that there was insufficient evidence to support his attempted murder conviction - in particular, that he intended to kill Officer Ryan Proegler when he discharged the gun. When we review a claim of insufficient evidence, we view the evidence - and all reasonable inferences from that evidence - in the light most favorable to upholding the jury's verdict.[2] We then ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt.[3]

In this case, both of the officers who tackled Lelilio to the ground after pursuing him on foot, i.e., Officers Proegler and Nicholas Saldana, testified that they heard a gunshot fired from very close to them after they had all fallen to the ground while attempting to restrain Lelilio. Officer Proegler testified that he felt dirt spray up and hit his face as the bullet impacted the ground near him. The officers then observed the tip of a handgun pointing through a newly created hole in Lelilio's jacket, which was wrapped around Lelilio's right hand. Officer Proegler testified that he then saw the muzzle of the gun pointed at him, from only a few feet away. A weapons expert testified that a person would need to surmount three safety mechanisms and use an above-average amount of force to pull the trigger in order to fire this particular gun.

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While Lelilio was on the ground, the officers tried to secure his arm and keep it from moving, but they testified that Lelilio was struggling and his arm was rotated so that the gun was pointing back toward the officers. Lelilio continued to struggle until another officer arrived and used a taser to subdue Lelilio. Although Lelilio verbally surrendered at that point, he did not release the gun and yet another officer had to physically remove it from his hand. Viewing this evidence in the light most favorable to the jury's verdict, we conclude that a reasonable juror could have found beyond a reasonable doubt that Lelilio fired the gun with intent to kill Officer Proegler.

Second, Lelilio argues that the superior court applied the wrong legal test when it denied...

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